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What is a trademark?

What is a trademark?

What is a trademark?

There is a lot of confusion around this question in the sannyas community. This confusion has been created in part by various claims about what a trademark is and what it does. The truth is that very few people, even many attorneys, really understand exactly what a trademark is, how it works, and how someone comes to own the right to use one, so it’s very easy for people to be confused and misled.

A trademark is a word, phrase, symbol, or image that is used in marketing a product or service. The mark has to identify the product or service as coming from a single source. For example, the word Coke, a Coke symbol, or the image of a Coke bottle/can are all used to market the cola product Coke. When you see any of those trademarks you know that the cola being offered comes from the Coca-Cola company in some way. Either the company has manufactured the Coke itself, or it has licensed another company to make the cola according to the Coca-Cola standards and recipe. You know that the Coca-Cola company is guaranteeing that the Coke you get in India is the same quality as the Coke you get in Germany and Florida. A trademark is meant to be an assurance to the public that the product or service being offered meets the quality standards of the trademark holder.

In effect, the trademark holder doesn’t own a trademark as a thing; it owns the right to use a trademark to market specified goods and services as long, and only as long, as the trademark holder guarantees the quality of all goods and services produced under the mark. If at any time the holder fails to control the quality of all goods and services, or if the trademark becomes associated with another idea in the public mind, then it ceases to be a trademark and no one can own the exclusive right to use it in the marketplace.

For example, The Xerox corporation was very worried for some time that it would lose the trademark Xerox, because many people were using the word as a verb, meaning to copy: “I’ll go and xerox these and be right back.” If the word xerox had come to mean copying, then it would have no longer been a trademark. Every time a consumer saw “xerox” he or she would not think of the products and services of the Xerox company, so xerox would no longer be a trademark for that company. The Xerox company spent a lot of money to convince the public not to use the word that way and managed to save the trademark. A word or phrase that has a common meaning to the public that isn’t associated with a trademark claimant is said to be generic.

A trademark is only valid if the owner has the exclusive right to use the mark for certain goods and services in the marketplace. If other people have equal rights to use the word, symbol, or image, then the word, symbol, or image cannot be a trademark. The reason for this is that if several people have a right to use it, the word, symbol, or image can’t tell the public that the goods or services meet the quality standards of a single source. [Note that the purpose of a trademark is first and foremost to protect the public’s right to know about quality. A trademark is not primarily a property right of a company.]

Ownership of a trademark also does not give ownership of the content of the product or service. The person or company producing a product or service has to have ownership of the product or service in some other way. It can apply a trademark it owns the right to use to goods and services it also owns or legally controls.

Osho as a Trademark

So how does all this apply to trademarks for the term Osho? Osho can only be a trademark if one legal entity (person or company) has the legal right to control all goods and services related to Osho’s teachings so that whenever the public sees “Osho” connected to goods or services it will know that the goods or services come from a single source and that that single source guarantees a certain quality.

[Note: That source can’t be Osho, since many other people besides Osho have long been involved in creating goods and services related to His work. Also, Osho never assigned His rights to anyone else, so if Osho is the source, no one owns the trademark.]

What goods and services are we talking about here? We’re talking about books and audio and video recordings, but we’re also talking about all the activities of Osho centers. These include meditation classes, sessions, and events; celebration events; music events; groups; sessions; bodywork; restaurants; books about Osho; newspapers; magazines; and any other business activity carried on under the name of Osho. We are also talking about all activity of individuals including classes, sessions, performances, seminars, groups, CDs, videos, books, and so on that are marketed using the name Osho.

There’s a second criterion that must be met before Osho could be a trademark. The public must perceive Osho as a trademark of a single company. They can’t, for example, see Osho as primarily a historical person who inspired independent meditation centers, therapy processes, and so on. They must see Osho as a trademark of one company that guarantees the quality of all goods and services produced under the name Osho. If that isn’t the perception of the public, then there are no trademark rights for anyone to own, because Osho has a generic meaning to the public.

The entity that is claiming to own the trademark for Osho (in most of the world) is Osho International Foundation (OIF Zurich), a small group legally registered in Switzerland, though OIF Zurich has only a mail-drop address there. In order for OIF Zurich to own the trademark it has to claim that it is the source of all goods and services connected to Osho’s work and that it legally controls all the goods and services produced by Osho centers and individuals using “Osho”. OIF Zurich has to claim to legally control every aspect of work done using Osho’s name. To own the trademark for Osho, OIF Zurich would have to be able to guarantee to the public that all these goods and services meet a certain quality.

If OIF Zurich cannot legally control all Osho centers and individuals using Osho, if OIF Zurich is not the source of the goods and services produced by the centers and individuals, and if OIF Zurich cannot guarantee the quality of all the goods and services of the Osho centers and individuals, then Osho cannot be a trademark for OIF Zurich. If the centers and individuals are independent and produce their own goods and services, then Osho is a term indicating a connection to the man Osho, but it can never be a trademark for any one company or person.

That’s why the issue of Osho as a trademark is essentially about control of or independence of the Osho centers and individuals. OIF Zurich has given other reasons for the trademarks to sannyasins and have claimed trademarks will protect Osho in some unspecified ways. OIF Zurich talk about keeping Osho “24-karat.”

That has a nice ring to it. It brings up images of gleaming gold and purity, but what does it really mean? Does it mean that a trademark can somehow keep Osho’s work safe? No, it can’t mean that. A trademark is a marketing device only. It signals to the public that one company is guaranteeing the quality of all the products or services, that one company is controlling everything. The idea of having Osho’s work tightly controlled as a form of commercialism is, no doubt, some people’s idea of safety, but it certainly isn’t Osho’s.

“I hate the word “ism.” I hate collectivities. I respect the individual. Collectivities are mobs, and the mob psychology has to follow the lowest denominator. Only individual peaks can become Everests. Collectivities become only flat ground. Do you want to be just a flat ground? Wouldn’t you like to be an Everest, reaching higher and higher towards the stars?

I cannot see you dependent. I cannot see you being harassed, tortured, ordered, made to obey—no. Hence, I say to you: My way of life is not a religion. It is certainly a kind of religiousness. To be religious without being attached to any religion is the most beautiful experience of life. Then religiousness is a quality, not a faith.”

From Bondage to Freedom, Chapter 15, Question 2

For Osho this very clearly meant that all the centers were to be permanently independent of any form of outside control:

“The world headquarters will be publishing my books, will be releasing my tapes, videotapes, will be doing every kind of work. But it has no domination over anybody. All communes of the world are independent. All centers of the world are absolutely free. They are under nobody’s guidance. My sannyasins are directly related to me. The world headquarters will simply function so that you can have a connection with me. Otherwise you don’t have any place to whom to ask where I am, what is happening to me. The world headquarters is not in any way a power over any sannyasin, over any other sannyas centers, ashramas, communes. It has nothing to do with that. It is my secretariat. And its function is to convey to me messages of importance and to convey to the sannyasins my messages of any importance to anybody. It is not an organization. It is not a structure. It is simply a functional office.”

The Last Testament, Vol. 5, Chapter 12

In any event, a trademark holder has to already own the right to control goods or services before the trademark is attached to those goods and services. Ownership of products and services is gained by creating the goods and services or by receiving an assignment of rights from whoever did create them. By filing to register a trademark OIF Zurich doesn’t get ownership of the goods and services created by centers or individuals. The centers and individuals own what they have created and would have to assign their rights to OIF Zurich before OIF Zurich could legally control them. OIF Zurich is essentially demanding that the centers do that, or, to be exact, is claiming the centers have already done that.

In terms of Osho’s religious teachings such centralized control would mean that a “mother church” exists that strictly controls all of the work around Osho’s teachings, that a mother church dictates dogma and doctrine, that a mother church interprets Osho’s teachings in terms of purity. Licensed centers would not be allowed to produce any product or service without receiving permission from OIF Zurich and having the service or product approved for purity. This is not a possibility, it is an absolute legal requirement for a real trademark holder. If OIF Zurich did not exercise such strict control it would be legally abandoning the trademark and would be legally giving up the trademark.

In the US trademark case OIF Zurich has claimed that it already controls all aspects of Osho centers around the world. On May 27, 2004 OIF Zurich told the Trademark Trial and Appeal Board (TTAB) that:

“Potential OIF Zurich licensees are required to submit to OIF Zurich for review and approval all proposed uses of the OSHO marks. OIF Zurich actively exercises its right to modify and reject those third parties’ proposed uses of the OSHO marks.”

In the same document OIF Zurich told the TTAB that it had been controlling all work related to Osho’s teaching since even before Osho left the body:

“Prior to the death of Osho, OIF Zurich was controlling the content of, producing and distributing the following goods and services under various OSHO marks: pre-recorded audio and video tapes in the field of education, religion, philosophy an science (Reg. No. 2,180, 173); sessions, workshops, retreats, seminars, groups, courses and training in the teachings of Osho…”

In a July 30, 2004 document OIF Zurich said:

“Both when Osho was alive and thereafter, OIF Zurich and its predecessor exclusively have controlled the nature and quality of their own and their licensees’ goods and services bearing the OSHO trademarks.”

Osho International Foundation’s Memorandum of Law in Opposition to Petitioner’s Motion for Summary Judgment, p. 4.

The licensees OIF Zurich was referring to were the centers. This was made clear by statements later in the same document:

“Unlicensed Centers that do not comply with demands that they discontinue all unauthorized use of the OSHO marks may be sued. [p. 14]”

OIF Zurich requires that all its OSHO Center licensees adhere to a detailed handbook in which OIF Zurich outlines how the OSHO Centers should be run. [p. 18]

Osho International Foundations’s Memorandum of Law in Opposition to Petitioner’s Motion for Summary Judgment

For OIF Zurich this means that it can claim to own all rights to all money earned by centers and individuals and all the value of the businesses they create:

OIF Zurich and its predecessor have received (and in the future will continue to receive) all benefits, including all money and all goodwill, resulting from their own and their licensees’ use of the OSHO trademarks.

Osho International Foundations’s Memorandum of Law in Opposition to Petitioner’s Motion for Summary Judgment, p. 4

OIF also presumes to define what purity is in relation to Osho’s teachings. Other interpretations of Osho’s teachings would be impure and not allowed for licensees.

“Your vigilance is essential in these matters to ensure the integrity and purity of Osho’s vision in India and around the world…”

OIF Zurich has also claimed that trademarks of Osho would help to protect the integrity of Osho’s meditation techniques. This is completely false. Osho created His meditation techniques in the 1960s and 1970s and encouraged people to take them around the world and share them with others. Sannyasins have done that privately, in centers, in yoga studios, in universities, and in many other places for over 40 years. Osho never assigned ownership rights in His meditation techniques to anyone else. This means that the meditation techniques have long passed into the public domain and no one person or entity can ever own the techniques or control how they are used.

It’s true that Osho asked that His techniques not be changed and warned that it might be harmful to do so. If people are using Osho’s meditation techniques and changing them, we can and should speak out about it and ask the people involved not to do it. Because Osho gave His techniques freely and trusted them to Existence, no one is in the position to force anyone to use the techniques in the way Osho asked. But this is exactly in line with what Osho said about using persuasion with others, not to use coercion or attempt to control others:

“Nobody can ever be coerced into meditation, because coercion is violence. How can one coerce meditation? It comes when it comes. But you can persuade.”

The Passion for the Impossible, Chapter-20

Osho chose to make it impossible for anyone to ever control His meditation techniques by giving them freely to everyone, and that’s the way it is. If anyone has an issue with that, thinks he or she knows better and that we should force a way to control the techniques, it’s worth remembering that Osho had the right to make choices about His own work. In any event, no attempt to control His meditation techniques will work at this late date. Trademarks can never be used to control the meditations, since the meditation techniques would have to be owned in some other way before they could be controlled. That isn’t possible, since Osho gave them freely to everyone. Osho trusted them to Existence, and we have to do the same.

Talk about using legal coercion to keep Osho’s meditation techniques “24-karat” is talk about trying to go against Osho’s clear wishes to keep his meditation techniques free for everyone to use. Fortunately, the evidence that the meditation techniques are in the public domain is so extensive, that no legal coercion can ever be used to oppose Osho’s wishes.

What this all comes down to is that Osho trademarks are about a small group of people seeking to strictly control all the Osho centers and individuals involved in furthering Osho’s work.

Does this mean that OIF Zurich really can control the centers? Not unless the centers allow them to. OIF Zurich is claiming that it already owns the trademarks, so it already has the right to control all centers, and it already owns control of all the goods and services that have been independently created by the centers and individuals. This isn’t true, but both centers and individuals need to set the record straight about this.

In fact, OIF Zurich’s claim is completely backward. OIF Zurich can only own the legal right to control the goods and services created by the centers if the centers give it those rights. OIF Zurich can’t legitimately own the trademark for Osho unless all the centers and individuals doing Osho’s work agree to be controlled by OIF Zurich. As long as some centers and individual are willing to stand up to OIF Zurich and insist on being independent, as Osho asked them to be, OIF Zurich is not likely to prevail in claiming to own exclusive rights to use Osho as a trademark. Even if OIF Zurich owned a trademark, centers that choose to can remain independent.

The danger is that those centers that cooperate with OIF Zurich and support OIF Zurich’s claim to own a trademark, or those who don’t object when they’re informed of what OIF Zurich is claiming, will end up legally and financially controlled by OIF Zurich. The centers that stand up to OIF Zurich can remain independent.

The choice of whether to agree to be legally and financially controlled by OIF Zurich is up to each center. Osho Friends only asks everyone to be fully informed; All the information is before you. Now its upto you to decide whether to sign away your independence, resources, and autonomy.

There’s also no reason for anyone to believe Osho Friends over OIF Zurich or vice versa. Everyone is encouraged to get independent legal advice. Have your own lawyers review this website, the documents in the US trademark case, and all trademark registration documents in your country. Get competent advice, and then decide what to do. Don’t make the decision until you’re sure you know what the legal effects on your center will be.



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